COURT FILE NO.: CR-14-10000717
DATE: 20180607
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC
Hank Goody, Anna Tenhouse, and Pamela Santora, for the Crown
Gabriel Gross-Stein, for Demitry Papasotiriou
Jack Gemmell, for Michael Ivezic
Ian Smith and Amy Ohler, Amicus
HEARD: May 7, 8, 9, 10, 22, 23, & 24, 2018
R.F. GOLDSTEIN J.
Ruling as to whether second degree murder and manslaughter should be left to the jury
[1] Mr. Ivezic and Mr. Papasotiriou are both charged with the first degree murder of Allan Lanteigne. Mr. Lanteigne was murdered in his home at 934 Ossington Avenue in Toronto on March 2, 2011. There is no direct evidence as to the identity of the killer.
[2] The question I must deal with as a matter of pre-charge discussions is whether I should leave second degree murder and/or manslaughter as available verdicts to the jury in relation to Mr. Ivezic. All agree that the only verdicts available to the jury in relation to Mr. Papasotiriou are guilty of first degree murder or not guilty. The Crown says I should not leave included offences to the jury in relation to Mr. Ivezic. Mr. Gemmell, for Mr. Ivezic, and supported by amicus, Mr. Smith, argue that all available verdicts should be left to the jury given the burden on the Crown.
[3] For the reasons that follow, I find that there is simply no air of reality to a verdict of manslaughter and I decline to leave that to the jury. I find that there is only a gasping air of reality to a verdict of second degree murder, but I am satisfied that I should leave that potential verdict to the jury.
BACKGROUND
[4] The Crown theory is that Mr. Ivezic carried out the murder. He entered the house at 5:19 pm on March 2, 20111 with a key provided by Mr. Papasotiriou at an earlier time. He disarmed the alarm with a code provided by Mr. Papsotiriou. One possible alternative theory is that he allowed Mr. Lanteigne to disarm the panel and then attacked him. On another possible alternative version of events, Mr. Lanteigne entered 934 Ossington at 5:19 pm and disarmed the alarm. He then prepared to go out, and after re-arming the alarm at 5:35 pm Mr. Ivezic attacked him before leaving at 5:37 pm. According to the Crown, however Mr. Ivezic murdered Mr. Lanteigne, he did so with planning and deliberation. He was aided and/or abetted by Mr. Papasotiriou.
[5] The state of the foyer of 934 Ossington strongly suggests a violent struggle. There were no signs of forced entry into the house, and no signs of robbery. The evidence thus suggests that the murderer targeted Mr. Lanteigne. Although Mr. Ivezic has advanced a theory that someone else spent the night in the house the night before the murder, and that this person had the opportunity to kill Mr. Lanteigne, the evidence supporting that theory is very weak. Although I ruled it passed the “air of reality” test, I found that it barely did so.
[6] The key evidence tying Mr. Ivezic to the murder is a significant quantity of his DNA found under the fingernails of Mr. Lanteigne’s right hand. There is no direct evidence as to how the DNA was transferred from Mr. Ivezic or when it was transferred. Expert evidence suggests that it could not have lasted there beyond three days. The Crown theory is that Mr. Ivezic’s DNA was transferred during the course of a violent struggle on March 2, 2011. Mr. Lanteigne either scratched Mr. Ivezic with his right hand or Mr. Ivezic’s saliva made contact with Mr. Lanteigne’s hand, perhaps while he tried to punch Mr. Ivezic in the mouth while defending himself.
[7] When Mr. Lanteigne was murdered on March 2, 2011 Mr. Papasotiriou was in Greece. On any Crown theory, however, Mr. Papasotiriou aided and/or abetted Mr. Ivezic. He did so by arranging, by email, for Mr. Lanteigne to be at 934 Ossington so that Mr. Ivezic could carry out the murder. The Crown argues that the motive for both men was primarily, but not exclusively financial. Mr. Lanteigne had a $2 million insurance policy with Manulife, and life insurance through his employment. Mr. Papasotiriou was the beneficiary of both insurance policies. After the murder, Mr. Ivezic assisted Mr. Papasotiriou in attempting to redeem the policies.
[8] The Crown and Mr. Gross-Stein, for Mr. Papasotiriou, are in agreement that Mr. Papsotiriou can either be acquitted or convicted of first-degree murder. In order for the jury to convict, they must first determine whether Mr. Ivezic is guilty of first-degree murder. If he is not, then there was nothing for Mr. Papasotiriou to aid and/or abet.
[9] Mr. Papasotiriou did not testify. Mr. Ivezic did testify. He testified that he did not murder Mr. Lanteigne. He testified that he was in another place, at another time. The last time he saw Mr. Lanteigne was on February 28, 2011, just a few days before the murder. He said that they had lunch together in Mr. Ivezic’s car. They ate gyros, a very messy food. Mr. Lanteigne used napkins in the car that likely had sauce from the gyros. Mr. Ivezic testified that he wiped his mouth with napkins. The clear inference that Mr. Ivezic will ask the jury to draw is that his DNA was innocently transferred to Mr. Lanteigne during the course of that lunch.
[10] The key question at this point is whether the jury should be left with second-degree murder and manslaughter as alternative verdicts.
[11] The Crown argues that there is no air of reality to second-degree murder or manslaughter. The Crown’s argument is simple: the manner of the killing indicates that it was planned and deliberate. The entry to the house, the lack of forced entry, and the targeted nature of the killing all suggest planning and deliberation. if the jury concludes that Mr. Ivezic was in the house at 934 Ossington on March 1, 2011, it could have been for no other reason than to realize a plan to murder Mr. Lanteigne.
[12] Mr. Gemmell argues that there is an obligation to put all possible alternative verdicts to the jury, even though Mr. Ivezic testified that he wasn’t there. He argues that the evidence of planning and deliberation is weak. Furthermore, he argues that there aren’t enough known facts to suggest that manslaughter should not be left to the jury. It is unknown, for example, if this was simply a fight gone wrong or there was an intention to kill that was formed only after Mr. Ivezic entered the house.
ANALYSIS
[13] This is primarily an identity case. The jury will have to grapple less with the question of intention to commit murder than with the question of who did it (and if so, whether it was planned and deliberate). If the jury determines that Michael Ivezic carried out the murder, then they will have to determine whether Demitry Papasotiriou aided and/or abetted him.
[14] In my view, either Mr. Ivezic murdered Mr. Lanteigne or he did not. If he did not, he is entitled to an outright acquittal. If he did, then he clearly went to 934 Ossington with the intent to commit murder. That would satisfy the identity issue. It would not, however, satisfy the planning and deliberation requirement that is necessary for a guilty verdict on first degree murder. It would also not satisfy the issue of aiding and abetting, but those issues are not before me at the moment.
[15] I analyse the issue by asking these questions:
(a) When should a court leave a lesser and included offence to the jury?
(b) Is there an air of reality to manslaughter?
(c) Is there an air of reality to second degree murder?
(a) When should a court leave a lesser and included offence to the jury?
[16] A court must put all defences to a jury where there is an air of reality to them: R. v. Cinous, 2002 SCC 29. The principle applies as well to included offences.
[17] In R. v. Cairney, 2013 SCC 55, McLachlin C.J.C. analyzed whether the defence of provocation was properly left to the jury. The Crown argued that there was no air of reality to the defence. The accused obviously argued that there was. The trial judge found that where there is any evidence supporting the elements of the defence, it should be left to the jury. McLachlin C.J.C. found that was an error. So was the Court of Appeal’s detailed examination of the merits of the defence. The proper question was whether “a properly instructed jury acting reasonably could have a reasonable doubt as to whether the elements of the defence of provocation are made out”. A trial judge must engage in a limited weighing of the whole of the evidence in order to determine “if a jury acting reasonably on that evidence could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder” based on the defence of provocation. See: paras. 19-21.
[18] The air of reality test “requires courts to tread a fine line: it requires more than "some" or "any" evidence of the elements of a defence, yet it does not go so far as to allow a weighing of the substantive merits of a defence”: R. v. Pappas, 2013 SCC 56; R. v. Mayuran, 2012 SCC 31.
[19] A trial judge must determine whether there is an evidentiary foundation for the defence. Any doubts about whether the air of reality threshold is met should be resolved in favour of the defence: Cairney, at para. 22.
[20] Interestingly, in Pappas the Court, citing R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836 at para. 35 holds that an air of reality cannot simply come from an unsupported assertion by the accused which is inconsistent with the totality of his or her own evidence. See: para. 24.
[21] In R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482, the accused was charged with first degree murder. The trial judge did not permit the jury to consider manslaughter as an alternative verdict. The accused had gone to the house of the victim, armed himself with firearms and ammunition that he was there, used a rifle to kill the victim’s dog, and then using a small-calibre pistol shot the victim 8 times. He then fled with stolen property. At trial the accused testified that he did not intend to kill the victim, only shoot him in the leg as a means of escape. Cory J, for the Court, found that on the evidence there was no air of reality to the defence. I note that the accused’s credibility was squarely before the trial court. The Crown possessed rebuttal evidence. The rebuttal evidence was devastating to the accused’s credibility.
[22] In R. v. Chalmers, 2009 ONCA 268 the victim died while riding her horse. The investigating police officer initially ruled the death an accident. Reviewing photos of the accident some 15 years later, a different officer, himself a rider of horses, became sceptical of the accident theory. The victim’s husband was interviewed and confessed to killing his wife. He later recanted the confession. One of the issues on appeal was whether the trial judge should have left manslaughter to the jury. Blair J.A., for the Court, relying on Aalders, found that it is only necessary for the trial judge to leave manslaughter to the jury where there is an air of reality to the defence. That is the test I must apply here.
(b) Is there an air of reality to manslaughter?
[23] The jury will be instructed to answer the following questions:
• First, did Michael Ivezic cause the death of Allan Lanteigne?
• Second, did Michael Ivezic cause Allan Lanteigne’s death unlawfully?
• Third, Did Michael Ivezic have the state of mind required for murder?
• Fourth, was Michael Ivezic’s murder of Allan Lanteigne both planned and deliberate?
• Fifth, did Demitry Papasotiriou aid and/or abet the murder of Allan Lanteigne?
[24] If the jury gets as far as the third question, they will have identified Michael Ivezic as the killer of Allan Lanteigne.
[25] The elements of the offence of unlawful act manslaughter are simply that the accused commit an unlawful act that caused (or was a contributing cause of death outside the de minimis range) the death of the victim: R. v. Nette, 2012 SCC 24.
[26] My duty is to evaluate the evidence and conduct the limited weighing to determine whether there is some evidence upon which a properly instructed jury could return a verdict of manslaughter. I simply do not see any air of reality to that lesser verdict.
[27] If the jury is satisfied beyond a reasonable doubt that Mr. Ivezic’s DNA was transferred to Mr. Lanteigne’s right hand fingernails during the course of a violent struggle – which will answer questions 1 and 2 – then it will have identified Michael Ivezic as the killer. There is no evidence that Mr. Ivezic went to 934 Ossington on March 2, 2011 for some purpose unrelated to murder, and then killed him during the course of a discussion or confrontation that went wrong. There is no evidence that Mr. Ivezic killed Mr. Lanteigne through some form of negligence or accident. I do not even need to conduct the limited weighing that might to necessary to determine whether a reduced culpability conviction is supportable. That is because there is simply no evidence that supports self-defence, or provocation, or any other defence involving reduced culpability.
[28] Indeed, the forensic evidence also does not support an air of reality to manslaughter. The alarm panel was knocked off its hinges. The painting right beside it was knocked askew. That evidence strongly suggests that whoever struck Mr. Lanteigne did so from behind, as he was at the alarm panel. The blood spatter evidence indicates that Mr. Lanteigne must have been struck by a blow on intact skin, but was then was struck with the fatal blows when his head was close to the ground. He had clearly already been struck on the head, and then was struck further blows when he was already incapacitated, likely reeling and on his hands and knees. The person who struck those blows was armed with a blunt instrument. There is no evidence that the killer got into an altercation with Mr. Lanteigne, and in the course of that alteration picked up some kind of household instrument to use as a weapon.
[29] To put it another way, there is no evidence upon which a properly instructed jury could conclude that if Michael Ivezic was at 934 Ossington on March 2, 2011, it was for some purpose other than to kill Allen Lanteigne. Mr. Ivezic lived in Mississauga; 934 Ossington is in mid-town Toronto. He testified that he had business meetings elsewhere. There was no reason at all for him to be at 934 Ossington. That does not reverse the legal onus, which is always on the Crown – it demonstrates that the evidentiary burden can sometimes shift.
(c) Is there an air of reality to second degree murder?
[30] Mr. Gemmell and Mr. Smith both argue that there is no way for the jury to know whether this was simply a fight gone wrong, or an argument that escalated into a killing, or whether some other scenario applies. The evidence of planning and deliberation, furthermore, is weak.
[31] I do not completely agree with the assertion of Mr. Gemmell and Mr. Smith. I think the evidence of intent is strong, as is the evidence of planning and deliberation. That said, the real question is this: would it be possible for the jury to answer “yes” to the identity question but have a reasonable doubt on planning and deliberation? I think that the answer to that question must also be “yes”.
[32] There are few cases where a court has considered whether second degree murder should be left where the issue is the identity of the killer. One such case has some features that are similar to this one: R. v. Buxbaum, 1989 CanLII 9944 (ON CA), [1989] O.J. No. 539, 70 C.R. (3d) 20 (C.A.). Mr. Buxbaum allegedly paid for a contract killing of his wife. He drove to a place where the killers carried out the plan. The contract killers pleaded guilty and testified against Mr. Buxbaum. Mr. Buxbaum testified and said that he had simply arranged to buy drugs and had nothing to do with planning a murder. The Court of Appeal rejected the argument that second degree murder should have been left to the jury:
We cannot see any air of reality to a charge that the appellant might be guilty of second degree murder. The only proper verdicts against the appellant were, as put by the trial judge, first degree murder or not guilty. Upon the evidence tendered at trial and accepted by the jury, the appellant made an arrangement to have his wife killed, provided money for payment to her murderers and conveyed her to the place agreed upon so that she would be killed. If the money was paid for some other purpose, and if their arrival at the scene was fortuitous, then no crime was committed by the appellant. As defence counsel put it to the jury, it was first degree murder or nothing. He was right. There was no tenable theory on the evidence whereby the appellant might be guilty only of second degree murder. Indeed, counsel for the appellant in this court was quite unable to suggest a tenable one.
[33] It is helpful to revisit the statutory definitions as well as the legal basis for first degree murder, second degree murder, and manslaughter. Section 222 of the Criminal Code provides, in part:
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
[34] The Code then goes on to define murder:
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
[35] The Code differentiates between first and second degree murder in this way:
231 (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(7) All murder that is not first degree murder is second degree murder.
[36] If the jury decides that Mr. Ivezic is, in fact, the killer, then he clearly had the mental intention to commit murder. The onus is on the Crown to prove both planning and deliberation beyond a reasonable doubt. Those two things are not the same. The model jury instruction states that the jury should be told that planning and deliberation are not the same as intention. The jury should then be instructed as follows:
The words “planned” and “deliberate” do not mean the same thing.
“Planned” means a calculated scheme or design that has been carefully thought out, the nature and consequences of which have been considered and weighed.
The plan does not have to be complicated. It may be very simple. Consider the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while, to carry it out.
“Deliberate” means “considered, not impulsive”, “slow in deciding”.
A deliberate act is one that a person or persons have taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder.
[37] If it was Mr. Ivezic who went to 934 Ossington on March 2, 2011 with the intention to commit murder, it stands to reason that he likely had a plan to get into the house either surreptitiously or without arousing Mr. Lanteigne’s suspicions. There are several evidentiary routes open to the jury. The jury could find that Mr. Ivezic had both a key and the alarm code. He entered the house prior to Mr. Lanteigne and then disarmed the alarm. He lay in wait for Mr. Lanteigne and struck him while Mr. Lanteigne was at the alarm panel and then finished him off while Mr. Lanteigne was on or close to the ground. Alternatively, the jury could find that Mr. Ivezic waited outside until Mr. Lanteigne came in and disarmed the alarm before he entered the house (while the door was still open, the evidence shows, or with a key).
[38] That said, while it is likely that Mr. Ivezic had a plan, the Crown must prove beyond a reasonable doubt that he did. Given that high bar, and bearing in mind that intention must not be confused with planning, I cannot say that the jury might not have a reasonable doubt about planning. That means, logically, there is an air of reality to second degree murder.
[39] It could also be that Mr. Ivezic encountered Mr. Lanteigne, and entered the house with him – and then attacked him. If that did happen, the jury could have a reasonable doubt about deliberation. Again, to put it another way, logically there is an air of reality to second degree murder.
[40] Although I have left second degree murder to the jury, this case is very close to the line. The entire tenor of Mr. Ivezic’s defence, including the cross-examination of many of the witnesses, has been that he was not present at 934 Ossington at the time of the murder. Indeed, there is no surveillance or fingerprint or eyewitness evidence to tie him to the murder. No murder weapon was ever found. It is unknown whether the killer brought the murder weapon into the house or used something already there. Mr. Ivezic’s house and car were searched. The police did not find any forensic evidence linking him to the murder – except his DNA, which matched the DNA under Mr. Lanteinge’s fingernails. There was plenty of evidence linking him to the alleged motive, and to the alleged after-the-fact conduct – but the only forensic evidence with a direct link is the DNA. Mr. Ivezic has never advanced a theory of reduced culpability. He has always advanced a theory that someone else killed Mr. Lanteigne. He put forward two alternate suspect applications – both of which were dismissed. He still wishes to put a theory forward that someone else was in the house with the opportunity to murder Mr. Lanteigne, although he cannot point to a motive or any other evidence for some unknown person to have killed Mr. Lanteigne.
[41] Furthermore, prior to trial Mr. Ivezic vocally argued that the Centre for Forensic Sciences maliciously manufactured his DNA profile in order to frame him. The manufacture of the profile was part of a conspiracy between the Toronto Police and the Centre for Forensic Sciences with the tacit approval of Crown counsel. Much time and effort was taken up in pre-trial motions seeking disclosure and third party records designed to advance this theory. Mr. Ivezic maintained the theory during the first part of this trial. Some of his first trial counsel’s cross-examination was directed to advancing this theory. Midway through the trial he discharged his counsel and represented himself. Some of his own cross-examination as a self-represented accused person advanced the conspiracy theory as well. He ultimately abandoned the theory. It will not be left to the jury. Indeed, it would have been difficult for him to advance this theory when his own forensic DNA expert agreed with the Crown’s forensic DNA expert that the DNA under Mr. Lanteigne’s fingernails did indeed belong to Mr. Ivezic.
[42] That said, a defence should not be taken from the jury simply because it is incompatible with the primary defence: R. v. Gauthier, 2013 SCC 32, 2013 S.C.C. 32 at para. 34. What governs is the “air of reality” test, even if the alternative defence is incompatible with the primary defence. Thus, I conclude that there is no rule of law preventing me from leaving second degree murder with the jury if a verdict in relation to that lesser included offence passes the air of reality test.
Furthermore, it would be dangerous to take away the alternative verdict of second degree murder simply because Mr. Ivezic advanced a theory that was completely unmoored from reality.
DISPOSITION
The jury will be instructed that they may find Mr. Ivezic guilty of second degree murder.
R.F. Goldstein J.
Released: June 7, 2018
COURT FILE NO.: CR-14-10000717
DATE: 20180607
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC
RULING AS TO WHETHER SECOND DEGREE MURDER AND MANSLAUGHTER SHOULD BE LEFT TO THE JURY
R.F. Goldstein J.